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Microsoft wins privacy tug-of-war with US government

Law enforcement versus individual privacy

The mood between tech companies and the US government has been less than cordial in recent months following a series of stand-offs over law enforcement and customer privacy issues.

In the most recent high-profile case, a US appeal court has ruled that the government cannot force Microsoft to turn over to them data stored overseas and has rejected an earlier ruling that found the tech giant in contempt for failing to aid a narcotics prosecution.

The case involves a demand by the government for information belonging to a Microsoft webmail customer. All well and good, except the email in question had already been transferred to a data centre in Ireland, in line with the company’s policy of storing such communications in a location closest to the user. Microsoft believed that supplying the government with the data from overseas would breach their terms.

New rules for new technologies

Last year, a New York court used the 30-year-old pre-internet ‘Electronic Privacy Communications Act’ to require Microsoft to comply with the US warrant, even though such warrants are usually only applied locally. The decision was overturned by the appeals court on the basis that trying to enforce the warrant to extend to Ireland would amount to ‘extraterritorial reach’.

The appeals court further pointed out the existence of bilateral treaties that would aid cross-border investigations in cases such as these, although admitted they were more ‘cumbersome’ than digital methods.

Microsoft saw it as an important test case on the issue of internet privacy. However, the company has since tried to pour oil on troubled waters by welcoming the recent attempts by Congress to arrive at fresh legal solutions that reflect the challenges posed by modern technologies, rather than those that ‘existed three decades ago when current law was enacted’.

A tough call

In a separate case in New York earlier this year, Apple successfully challenged a writ demanding that it remove data from a suspect’s encrypted iPhone to help in the prosecution of a narcotics case. This came in the wake of a high-profile face-off with the government over access to an iPhone belonging to one of the San Bernardino killers. The two sides reached an impasse which was broken only when the government found a way to hack the phone without Apple’s assistance.

In all these cases, it’s easy to see how decades-old legislation has a tough time adapting to the elastic boundaries of the new era of cloud computing and it can be hard to square the fundamentals of law enforcement with personal privacy. However, it’s an issue that likely only to become more prevalent, with the pressure on for Congress to issue fresh guidance.